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Scott v. Carey

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 13, 2009

NOEL PHILLIPE SCOTT, PETITIONER,
v.
TOM L. CAREY, RESPONDENT.

ORDER ISSUING A CERTIFICATE OF APPEALABILITY

Petitioner Noel Phillipe Scott seeks to appeal in forma pauperis from this court's order of January 8, 2009, dismissing this habeas corpus petition. Before defendant can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

Petitioner has made a sufficient showing to justify issuance of a certificate of appealability on the issue of whether petitioner's is entitled to equitable tolling on his habeas corpus petition.

IT IS THEREFORE ORDERED that a certificate of appealability is hereby issued.

20090213

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